SUCHITRA KARATI Vs. SUMITRA DAS

JUDGEMENT

(1.) THIS miscellaneous appeal is directed against an order of remand passed by the leaned Additional District Judge, 10th Court, Alipore in T. A. No. 300 of 1989, by which the suit for declaration, injunction and partition filed by the plaintiff/respondent was remanded back to the learned Trial Judge for retrial with a direction upon the learned Trial Judge to consider the respondent's application for addition of party filed in the said appeal. An opportunity for filing additional written statement to the amended pleadings of the plaintiff was also given to the defendant/appellant. of the defendant/appellant herein.

(2.) LET me now give the short background of this litigation leading to the filing of this instant miscellaneous appeal.

(3.) THE plaintiff and the defendant are two step sisters. Their father namely Jugal Charan Santra who was a member of the West Bengal Legislative Assembly, died intestate leaving behind him surviving his two daughters. One of the daughters of Jugal babu filed the instant suit for declaration, injunction and partition against her sister. In the said suit, partition of several properties being schedule 'a', 'b' and 'c' was sought for, upon a declaration that two gift deeds allegedly executed by Jugal babu on 5th February, 1987 and 9th February, 1987 through which the defendant is claiming absolute right in respect of the 'a' and 'b' schedule property, are null and void as those deeds were created by the defendant by false personification with an intention of grabbing the entire property of her father. The plaintiff claimed that those gift deeds were never executed by Jugal babu and the left thumb impression which are appearing in those deeds are not the left thumb impression of Jugal Babu. In fact, the said Jugal babu was a literate person and he executed another deed on 30th January, 1987 by putting his signature in Bengali in favour of one Gautam Santra. Since the said deed was executed by Jugal babu by putting his signature therein immediately five days before the execution of the disputed deeds, the physical fitness of Jugal babu at the time of the execution of the deed cannot be doubted. Thus, the plaintiff expressed her suspicion about the execution of those disputed deeds by Jugal babu as he who being a literate person and executed the other deeds by putting his signature therein, is not expected to execute the disputed deeds by putting his left thumb impression therein. The execution of those disputed deeds by putting left thumb impression therein by a literate person, without giving any explanation as to why those deeds were executed by him by putting his left thumb impression therein, according to the plaintiff, is much more suspicious. disputed gift deeds are void and are not binding upon the plaintiff. Thus, the plaintiff also claimed partition of the suit properties comprising of schedule 'a', 'b' and 'c'. The defendant/appellant contested the said suit by filing written statement therein by denying the allegations made in the plaint. The defendant asserted that those gift deeds were duly executed by Jugal babu. By one of those deeds, Jugal babu gifted his 'a' schedule property in favour of the defendant. By the other deed, Jugal babu gifted the 'b' schedule property in favour of the defendant. Thus, by virtue of those two gift deeds the defendant is claiming absolute title in respect of 'a' and 'b' schedule property. 'c' schedule property is admittedly a joint property of the parties. The defendant also claimed that both the plaintiff and the defendant have undivided half share in the 'c' schedule property. In fact, the defendant did not oppose the plaintiff's claim for partition in respect of 'c' schedule property. The defendant, however, challenged the maintainability of the said suit for non-joinder of necessary parties.